Judith Walton v. Reddish et al

Filing 132

ORDER denying as moot 129 Defendant Criswell's Motion to Strike; overruling Defendant Criswell's objection to the Court's consideration of hearsay statements under Rule 56. Signed by Magistrate Judge James R. Klindt on 3/18/2020. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JUDITH WALTON, as Personal
Representative for the ESTATE
OF FRANK SMITH, on behalf of the
Estate and Survivor Judith Walton,
Plaintiff,
v.

Case No. 3:16-cv-1130-J-39JRK

FLORIDA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
______________________________
ORDER
Defendant

Criswell

seeks

an

order

striking

the

hearsay

statements of Inmates Williams and Harris, which are referenced in
the Florida Department of Law Enforcement Investigative Report
(FDLE Report) Plaintiff offers

as an exhibit

in response to

Defendant’s motion for summary judgment (Doc. 129). Plaintiff has
responded to the motion (Doc. 130; Pl. Resp.).
Rule 56 of the Federal Rules of Civil Procedure provides,
“[a] party may object that the material cited to support or dispute
a fact cannot be presented in a form that would be admissible in
evidence.” Fed. R. Civ. P. 56(c)(2). The Advisory Committee Notes,
2010 Amendment, clarifies that a party who asserts a hearsay
objection under Rule 56 need not file a motion to strike:
Subdivision (c)(2) provides that a party may
object that material cited to support or
dispute a fact cannot be presented in a form

that would be admissible in evidence. The
objection functions much as an objection at
trial, adjusted for the pretrial setting. The
burden is on the proponent to show that the
material is admissible as presented or to
explain
the
admissible
form
that
is
anticipated. There is no need to make a
separate motion to strike.
Construing

Defendant

Criswell’s

motion

as

asserting

an

objection under Rule 56(c)(2), the Court finds Plaintiff carries
her burden to show the statements to which Defendant Criswell
objects are capable of being reduced to admissible form at trial.
Plaintiff’s attorney states he intends to petition the Court for
a Writ of Habeas Corpus ad Testificandum for Inmates Williams and
Harris to testify at trial. See Pl. Resp. at 4.
For the above reasons, Defendant Criswell’s Motion (Doc. 129)
is DENIED as moot, and his construed objection to the Court’s
consideration of Inmates Williams’s and Harris’s statements when
ruling on his motion for summary judgment is OVERRULED.
DONE AND ORDERED at Jacksonville, Florida, this 18th day of
March, 2020.

Jax-6
c:
Counsel of Record

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